Many of America’s founders were concerned about the role of the judiciary before the Constitution was ratified by the states. To allay their fears, Alexander Hamilton, whose love affair with the judiciary was noticeable, wrote in 1788, “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in the capacity to annoy or injure them.”
But by 1823, Thomas Jefferson penned the following, “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous.”
The reason Jefferson made this statement, and the reason he spent the last 23 years of his life at war with the Supreme Court [SCOTUS], was because the Supreme Court spent the first 40 years of its existence trampling the sovereignty of the states, while giving power to the federal government not granted to it in the Constitution. SCOTUS also was busy granting itself power; claiming a role for itself never granted by the Constitution – namely, the final arbiter of all constitutional questions.
A quick review of numerous cases show that our assertion here is historically correct.
The very first case came just six years after the ink had dried on the Constitution. Chisolm v. Georgia was decided by SCOTUS in 1793. The case arose in 1792, when Alexander Chisolm from South Carolina decided to sue the state of Georgia.
The defendant, Georgia, refused to appear, claiming that, as a sovereign state, it could not be sued without granting its consent to the suit. The Supreme Court ruled that Article 3, Section 2, of the Constitution abrogated the states’ sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and states.
Alexander Hamilton, James Madison, and even John Marshall (who would later become chief justice of the Supreme Court) had all expressed the opinion before the Constitution was ratified – that the highest authority of a state could not be called before the bar of a federal court.
Now the court – just six years later – is saying the exact opposite of what the founders understood. The Supreme Court is rewriting the Constitution through their interpretation in their issued court opinion to assume powers not granted to the federal judiciary in the Constitution.
Only Justice James Iredell dissented from the court’s opinion. He wrote:
“Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them.”
So alarmed were the states of this arrogant ruling by SCOTUS, that defiance of it resulted in the 11thAmendment being passed in 1795 which states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The states and Congress successfully reined in this power-grab and act of lawlessness by the Supreme Court – temporarily that is. The federal judiciary was unimpressed and continued their attacks upon state sovereignty.
The Supreme Court arrogantly trampled the 11th Amendment just 26 years later in Cohens v. Virginia(1821). The opinion issued by SCOTUS was a political manifesto designed to humiliate the states and to strengthen the power of the federal government.
Amazingly, the man who wrote the opinion was Chief Justice John Marshall. Marshall had declared prior to the Constitution being ratified in 1787, “I hope that no gentleman will think that a state will be called at the bar of a federal court.” Cohens v. Virginia exposed his hypocrisy or his collusion with Hamilton and the nationalists.
In case after case, for the first 40 years of its existence, SCOTUS wrote power for itself not granted by the Constitution and trampled the sovereignty of the states. United States v. Peters (1809); Fletcher v. Peck (1810); Martin v. Hunter’s Lessee (1816); McCulloch v. Maryland (1819); Dartmouth College v. Woodward (1819); Cohens v. Virginia (1821); Gibbons v. Ogden (1824); and Brown v. Maryland (1827) – all court opinions issued by SCOTUS that attacked, removed, and undermined state sovereignty while empowering SCOTUS and the federal government with unconstitutional powers.
And they have continued this march to secure their unconstitutional powers all the way up to our day. We are up against a tyrant that has spent 200 years strengthening itself.
What the Supreme Court did in those early years did not happen without a fight. There was a massive battle. Good men confronted the federal tyrant. And contrary to popular opinion, this war is not over. We must fight in our day.
Men will forbear and so we should when able. But there comes a point when men should not forbear. There comes a point where forbearance is cowardice. There comes a point where forbearance becomes sin and immorality. Americans have long reached that point. We no longer have the convenience of acting indifferent towards the unjust and immoral actions of the Supreme Court.
In a true federalism – which is what our founders established – there is no final arbiter of constitutional questions; there is no oligarchy to which all other branches of government must bow and which tramples representative government. That is the beauty of checks and balances. That is the beauty of federalism.
The states must assert their sovereignty.
Matthew Trewhella is the pastor of Mercy Seat Christian Church (http://MercySeat.net) and author of the book The Doctrine of the Lesser Magistrates (http://DefyTyrants.com). He and his wife Clara have eleven children and reside in the Milwaukee, Wisconsin area.
 Federalist No.78, May 28th, (1788)
 Letter to Adamantios Coray, October 31st, (1823)
 3 Elliot’s Debates 555, (1787)
Article posted with permission from Matt Trewhella